Wikileaks Gets Domain Back, Injunction Dissolved

I Don't Believe in Imaginary Property writes "The judge in the Wikileaks case has dissolved the injunction against Wikileaks, which means that it can get its .org domain back. He defended his prior ruling because it was based on the pittance of information the bank and registrar had provided him, saying 'This is a case in which we had a (dispute) with named parties, and the parties were duly served. One of which properly responded and came to this court with a proposed settlement in this lawsuit... Nobody filed any timely responses to the court's order.'"

Re:Anal Leaks Gets Turd Back, Constipation Dissolv

[spasm]

That's not a troll - it's a lucid summary of the situation.

an honest judge

[Will the Chill]

Judge White seems to have made appropriate decisions, as he only passed the original injunction because of the (purposefully unfair) timing of the court date leading to an under-represented WikiLeaks. He says that his subsequent review of the case revealed the obvious conflict with free speech rights, and has reversed the injunction so WikiLeaks can get its domain back.

The main point to take away is that they still have to go through litigation, as this just removes the injunction against WikiLeaks' primary US domain name.

-Will the Chill

*sig.com: domain not found*

Re:an (dis)honest judge

[IBitOBear]

Well, the "trick" still worked. Wikileaks is now "properly before the court since they sent [council]". So now the case is before a judge who had _no_ jurisdiction because the judge wasn't honest enough to say "this shouldn't have come before me, get out".

So now the same easily hoodwinked judge is going to be the one to rule over something that isn't even in this country.

That is _not_ honest, nor is it justice.

The system was gamed. That it may not be an _utter_ disaster in the final ruling doesn't mitigate the fact that it shouldn't be happening at all.

Re:

[CrazedWalrus]

The New York Times coverage [nytimes.com] has a few interesting quotes:

William J. Briggs II, a lawyer representing the bank, said the decision "abdicated federal judicial authority to the Internet."

...presupposing that the federal judiciary ever had control over "the internet".

From the judge:

"The court is telling you, you can't rein this in," he added, "and I think that's a sad commentary."

Why is it a sad commentary, when a judiciary with questionable or no jurisdiction can't remove information from another country's co

Re:

[ruinevil]

If the litigation runs long enough and though a few appeals, maybe it will entrap Julius Baer into American banking laws, since the American government always needs more money.

Anyways, with the injunction lifted, can Wikileaks now transfer the domain name out of the country? There is something very wrong in the world if two organizations that pride themselves as being anonymous and beyond of the reach of America laws/taxes duke it out in an American court.

Re:

[cHiphead]

Julius Baer already has an American subsidiary, so they are trapped into American Banking laws.

YANAL

[Jane Q. Public]

You do not need to be a lawyer to understand that a judge committed what should be considered "prior restraint" against the First Amendment rights of Americans, in response to dubious and unsubstantiated allegations by a foreign bank that was called into question for its practices.

I don't think those are genius -- or even college -- level concepts.

Since when do foreign business interests trump Constitutional Rights? Prior to proof or even substantial evidence? As far as I know, they haven't... until

Re:

[HiThere]

Honest? Well, he could have done worse.

The lesson I take away is "This is another proof that the US legal system is biased in favor of the litigious powerful."

Imagine that *you* had been the one served. You aren't even in the same state. You don't have a dedicated lawyer. What is the result? Most likely you need to take of an unknown amount of time in the middle of a project which will not be recompensed. You're likely to lose your job.

Wikileaks was more powerful, so they were less affected, but it wa

Re:an honest judge

[rahvin112]

Judge White made a terrible decision. A jaw dropping horrible decision. A decision so horrible it drew in briefs from the who's who of top civil rights defense organizations. Close to 20 separate nonprofit civil rights groups including the EFF, Librarians association, Public Citizen and ACLU.

He failed to even ask basic questions about why he was hearing a case by a foreign bank against an Australian living in Kenya. He failed to even ask basic questions about why he was in an exparte motion on document exposure with a foreign bank. He failed to verify that Wikileaks had been properly served. They HADN'T, unless you think a vague threat of court action possibly taking place in three separate countries by email counts as proper service. He failed to ask even rudimentary questions about why he was being asked to take down the domain name for an organization with over 20,000 documents exposing fraud and public misdeeds over the release of a single set of documents that purport to show company sanctioned money laundering by one of Switzerlands top banks. He failed to even consider that the public value of the document as press overrides the copyright considerations. He failed to even read the injunction he signed, as all he did was cross out the proposed on the top of what Baer's lawyers had given him. He absolutely failed to consider the freedom of press as it relates to these documents. He absolutely failed in almost every respect.

Judge White's actions, not only in allowing the case to go forward when it's CLEAR he has no jurisdiction in the case and his previous actions lead me to believe he is nothing short of incompetent in the job. Judge White is a danger to the American justice system and should be removed from the bench. His actions were clearly negligent and a breach of everything this country stands for and a slap in the face of justice.

And just to throw a little analogy your way what he did was the equivalent of removing a foreign citizens name from an international phone book at the request of a foreign company over the dispute of a published editorial on the conduct of said company. The decision was one of the worst made in the last 10 years by an American court. Jaw dropping horrible, not a single basis in law or even common sense for how he ruled.

Taking the time to defend his judgment to the press (and not the parties to the suit) shows just how bad the decision was and was simply an attempt to cover his ass. In fact I'm even more offended by the Judges actions by his attempt to defend his terrible ruling including blatantly lieing that WIkileaks was properly served. Had the Judge an ounce of honesty he would have admitted his negligence and transfered the case to another Judge to rule on the jurisdictional issue. Instead he rules that Wikileaks sending council to get their domain name back amounted to them admitting jurisdiction. If he was a cop that would have been entrapment, his actions and his rulings prove that him remaining on the bench is a danger and he should lose his bench immediately for gross misconduct. In fact I would go a step further and say he shouldn't just lose his bench, he should be disbarred and lose his license to practice law in every state. Not only that but the Hollywood lawyers involved for the bank should also be disbarred for what they did as they clearly violated the federal procedural rules and gamed the system. Not only that but I wouldn't be surprised if you examined the record and there is a similar course of action taken by this judge when dealing with lawyers from this firm in the past. This was far to horrible to be a freak ruling or one time incident.

Don't defend the actions of this Judge, be horrified that he made such a terrible ruling and be shocked that no action will be taken against him for it.

Re:

[shentino]

The problem is that we run on an adversarial system where the only person who has an interest in your case is the same guy you're paying.

I think we need to move to the inquisitorial system. Turn the judge into a PI, and let everyone dig deep on both sides.

The US court system promotes aggression.

Properly Served?

[Bruce Perens]

It wasn't clear to me that the wikileaks folks really were properly served. Well, they were probably doing their best to avoid being properly served.

Re: Properly Served?

[Will the Chill]

I think it's clear that WikiLeaks was practicing "non-violent resistance" in this case. Of course, that's probably their policy for dealing with such situations, as they have doubtless encountered before.

Regardless, it is obviously unjust to assume guilt in a case of passive resistance against aggressive persecution from a (seemingly) fraudulent entity. Thus, Judge White dissolved the injunction and the litigation shall ensue.

I suppose WikiLeaks' behavior is fairly logical considering the nature of their cause and the extreme prejudice of this particular corporation. I'm just glad that 10+ freedom-loving lawyers were/are willing to step up to bat on their side.

-Will the Chill

*sig not available, please try again later*

Re:

[versiondub]

You grossly overestimate the US court system's ability to take the things you list into consideration when the plaintiff cites some actual legal precedent and sends lawyers to court (and the defense does not, for in this case obvious reasons). the US legal system is built on adversarial mediation; hence the court is biased towards a form of mediation in which both parties are represented. It's not the judge's job to consider the moral/legal implications of a particular judgement, it's the job of the respe

Re: Properly Served?

[sumdumass]

You know, I was with you all the way up until you limited your comments to George the second.

This has been in practice well before Bush or any George was in power in the US. Besides, it is the congress which makes the laws and the courts who make most of their own rules they operate under. So placing blame on a president is a bit of a stretch to begin with let alone placing it on one years separated from the beginning of the process.

I know a guy who all the sudden had 35% of his pay missing and when complaining he found that it was being garnished by some court 2 counties away. After investigating there, he found that some girl he had a one night stand with claimed paternity, claimed he couldn't be located so they were able to run notice in the city/county newspaper to set a trial date, and because he didn't show up, she won by default and the judge imposed the maximum child support allowed by state at the time (which was a percentage of income) and allowed it to be garnished if they could track his employer down. This was in 1984-85 or round about there so I know it has been going on for at least that long. Of course he appealed and got a blood test proving he wasn't the father but it took 5 years to do it. And he never got any of his money back. Sure he got a judgment a few years later but it had all been spent and she didn't have anything of her own to take.

In fact, it is common for a judge to issue orders to protect against whatever damage is claimed to be happening in cases like these until the facts can be sorted out. And when someone doesn't show up to offer their side of the story, well you know what happened.

Re:

[Stanislav_J]

Is there a way one can determine if there has been this sort of "default" court judgment against them? I mean, a case like the one you stated in which one can't be located (maybe several address changes since) to be served and/or some unseen notice published in an obscure weekly or something. Is there a website where one can look up such things?

(Um, not that I am concerned with myself, of course, as I have always lead an exemplary and blameless life...) (*ahem*)

Re:

[frdmfghtr]

I find it interesting that he couldn't be tracked down to be properly served, yet he could be tracked down to pay up.

Re:

[jefu]

You know, I was with you all the way up until you limited your comments to George the second.
This has been in practice well before Bush or any George was in power in the US.

I thought he meant George the Second of England.

Re:

[Anonymous Cowpat]

the judge is absolutely guilty of the most shocking and dangerous negligence. The fact that it's his job to be negligent doesn't enter into it. If he can't be bothered to do even the most rudimentary checking that the basis of his decision to exercise his powers in factually correct, he should bear the full burden of the consequences of those actions.
Does it make even the slightest bit of sense that someone can swan into a court, demand action be taken that will harm a third party, and not actually have to

language?

[jxxx]

Sorry, but what language is this written in?
I recognize a number of English words, but parsing halts at that point.

That's funny...

[__aaclcg7560]

Nobody filed any timely responses to the court's order.

For most judges, this isn't a problem. Sheriff deputies at the front door usually get a timely response.

Re:

[Atlantis-Rising]

As a rule, the court doesn't bother doing that sort of thing. If somebody doesn't show up, they don't get to defend themselves, pretty much. That generally leads them to lose.

Re:

[jasen666]

The court doesn't do it at all, but the plaintiff is supposed to when the lawsuit is served, which is what I assume he's talking about.
Whether it's a sheriff/deputy or not depends on the rules of that particular court or district.

Re:

[Atlantis-Rising]

And a judge may order specific rules of service if individuals are in unique circumstances, indeed.

bullshit

[SuperBanana]

He defended his prior ruling because it was based on the pittance of information the bank and registrar had provided him

And acting on a pittance of information to such an extreme, when you have the full power to say, "Go fish, I need more information before I'll shut down an entire website", is excusable how?

Injunctions are supposed to be used only when the plaintiff has presented PROOF that irreparable damages will occur unless they get said injunction. It's not even enough to say that enormous damage will be done- it has to be irreparable.

Re:

[jxxx]

It does seem that we're dealing with an 18th century timeframe for a 21st century conflict.

Not to suggest that I have an answer. Hours on either side of the coin can translate to hundreds (or thousands * reproductions) of extralegal viewings, which might translate to measurable harm.

Re:bullshit

[dirk]

He acted on the information because wikileaks didn't bother to dispute any of it (why they didn't is up for debate). He had one side showing up and claiming they were being horribly harmed by a website and it would kill their business and kick puppies and whatever else they claimed. The judge looked to the other side to ask if any of this was true, and there was no one there to tell him it wasn't, so he had believed the only information in front of him and acted on it.

This just shows that if you are being sued, simply hiding and avoiding it is not usually a good course of action, especially if you think the case has no merit. IF the judge only has 1 side talking to him, he is going to listen to them.

Re:bullshit

[humphrm]

Absolutely correct. The irony is that an injunction hearing is not technically "litigation", many people try to avoid "litigation" because without proper service and representation in court, you can't be held responsible. But in the case of injunction hearings, that doesn't hold true, and defendants need to be more selective about their use of the "hide to avoid responsibility" defense.

They weren't told.

[HappyEngineer]

They weren't hiding. They weren't told about it until AFTER the judgement had occurred. It's kind of hard to defend yourself when you don't even know that a trial is going on.

Re:

[sumdumass]

Hmmm. The story I got was that they were informed but didn't have time to find a lawyer because of either the time of day or a holiday or something. But they had like 4 or 5 hours before the hearing whihc seems to be only a few less hours then the court new about.

Re:

[Jane Q. Public]

A judge should not be free to make STUPID, possibly UNCONSTITUTIONAL decisions (prior restraint of First Amendment rights, for example), REGARDLESS of whether he receives a response. He is passing the buck for his own bullshit to the accused, which is simply not accpetable.

Seriously...

[Jane Q. Public]

Despite the negative mod, my comment was not intended to incite. I am being serious. The fact that he did not receive a response did not give him authority to restrain the speech of third parties, in his attempt to restrain the accused. That was a BAD decision that should never have come about.

Re:

[Anonymous Cowpat]

but there was no-one on the other side telling him that it WAS true. If you're waiting for input before making a decision where the input is going to be 90% chance of 1 and 10% chance of 0, the waiting for input times out and the decision has to be made, you don't have a choice but to assume data, and you're going to assume 1. Now, imagine that you have a input of 1 (90%), 0(0%) or -1(10%); you get no input; do you assume 1, 0 or -1? Clearly, you should still assume 1 - whilst 0 might be the middle value, i

Re:

[sumdumass]

Maybe without someone representing wikkileaks, it appeared like irreparable damages. I mean part of the process is someone claiming the worse and someone defending their actions as not that bad.

The persistently unfair part

[IBitOBear]

The judge also ruled that Wikileaks is now "properly before him" because they sent a lawyer.

So effectively the bad people managed game Wikileaks into a jurisdiction that has nothing to do with them.

So damage has been done in a real and unjust way as a side effect of the bad ruling.

Just like in sports, it isn't fair for the ref, having screwed up in the first quarter, cannot "make it right" by ruling arbitrarily against the other team in the third quarter.

Re:

[mdenham]

Just like in sports, it isn't fair for the ref, having screwed up in the first quarter, cannot "make it right" by ruling arbitrarily against the other team in the third quarter.

Works for me. I liked that Subway commercial.

not necessarily a dishonest judge

[Will the Chill]

Yes, Judge White was "gamed" by BJB into imposing the original injunction. I simply maintain that this was caused by the fraudulent bank's overly-aggressive initial legal activities, /not/ due to a blatently dishonest and incompetent judge.

I fully agree it is possible that Judge White is not the proper or final judge for this case. I'm only saying he /seems/ to have made an "honest" mistake and has taken the appropriate steps to apoligize and rectify.

Maybe the judge is a big, fat liar. I don't know, alth

Re:not necessarily a dishonest judge

[IBitOBear]

It was _not_ honest nor competent to give himself jusrisdiction over someone because he lured them into providing legal council because of his own previous mistake.

Were he honest, he would have voided his injunction and then ruled that he didn't have jurisdiction to hear any of that mess.

Why?

For the same reason that some random Shaia judge in some foreign country isn't allowed to rule on what you say or do.

The web site isn't in this country. The owner of record isn't in this country. The bank inst in this country.

(It's as if I were suing you in Mexico [presuming you are not Mexican, and knowing I am not] because your stationary printing was outsourced to a Mexican company, and some Mexican judge, having sent cops to your house to steal all your papers, ruled that since you sent someone to Mexico to ask for it back, you clearly intend to represent yourself there in his court.)

It's bull. There is no such thing as "entrapment" in civil court, but this is something very like that.

judge is only human

[Will the Chill]

As I said, I don't necessarily believe Judge White is the proper or final judge for this case.

He's just trying to save face by reversing his previous injunction, yet retaining jurisdiction. I don't support his jurisdiction, and actually quite agree that it is not a case for the US judicial system at all.

I am reminded of Dale Carnegie's leadership principle #5 in How to Win Friends & Influence People:

"Let the other person save face."

Seems like Judge White's actions are flawed, yet human. How surprising

Re:not necessarily a dishonest judge

[KiahZero]

I don't know what decision you're reading, but the order I'm reading seems to indicate that Judge White doesn't think that the Court has jurisdiction:
http://www.eff.org/files/filenode/baer_v_wikileaks/wikileaks102.pdf [eff.org]

From the founding of the federal courts, it has been unanimously held that "the courts of
the United States have no jurisdiction of cases between aliens." Montalet v. Murray, 8 U.S. (4
Cranch) 46 (1807). The Ninth Circuit has adhered to this rule. "Diversity jurisdiction does not
encompass foreign plaintiffs suing foreign defendants." Cheng v. Boeing Co., 708 F.2d 1406,
1412 (9th Cir. 1983). The presence of citizen defendants does not preserve jurisdiction as to the
alien. Faysound Limited v. United Coconut Chemical, Inc., 878 F.2d 290, 294 (9th Cir. 1989)
(citing Boeing, 708 F.2d at 1412). In order for the Court to exercise subject matter jurisdiction
over this matter, complete diversity must be established under the original Complaint. See
Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).
The Court is concerned that it may well lack subject matter jurisdiction over this matter
in its entirety. 1
1) Although Plaintiffs pleaded jurisdiction under 28 U.S.C. 1350 for a "civil action
by an alien for a tort committed in violation of a treaty of the United States," the Complaint
does not state a cause of action under any specific treaty, and counsel for Plaintiffs conceded
that the Court does not maintain jurisdiction under this alternative ground. (See Compl.,
2.)

Additionally, while I don't remember much from Civil Procedure, I do recall that appearing in court to challenge personal jurisdiction doesn't grant the court personal jurisdiction.

Be Clear: The domain owner is in Australia

[IBitOBear]

Just to clarify, the "owner" of Wikileaks.org isn't in the USA, let alone California. His registrar is, which is why the bank attacked there with the intent of creating the injunction. The guy is in Australia.

How would you like to find that you registered a domain name, and suddenly you were part of a civil litigation on another continent?

That's why the ruling where the judge granted himself jursidiction after being duped into luring someone into providing a lawyer across an ocean is outrageous.

This is, in some odd way, like some bizzaro-world civil entrapment.

Re:Be Clear: The domain owner is in KENYA, D'oh

[theNAM666]

The domain owner (John Shipton???) is an Australian living in KENYA. Heck of a place to get stuck in the 'arvy.

Next step: change registrar to Norway...

[theNAM666]

OK, so the logical next step here is to transfer to a registrar in Norway (or other independent jurisdiction), effectively bystepping Dynadot and making the US case moot, right?

Re:

[Kiralan]

It looks like they are now hosting their own DNS, and changed their registrar, if I read their whois correctly. Registered through: GoDaddy.com, Inc. (http://www.godaddy.com) Domain Name: WIKILEAKS.COM (....) Domain servers in listed order: NS1.WIKIA.COM NS2.WIKIA.COM

Re:

[theNAM666]

They are still registered with DynaDot, and the only change in the record is that 'status' has been updated from "CLIENT TRANSFER PROHIBITED" to "OK". Viz:

Domain ID:D130035267-LROR
Domain Name:WIKILEAKS.ORG
Created On:04-Oct-2006 05:54:19 UTC
Last Updated On:01-Mar-2008 01:15:18 UTC
Expiration Date:04-Oct-2008 05:54:19 UTC
Sponsoring Registrar:Dynadot, LLC (R1266-LROR)
Status:OK
Registrant ID:C-13000
Registrant Name:John Shipton
Registrant Street1:c/o WLK PO Box 8098-00200
Registrant Street2:
Registrant Street3:
Regi

Nice job reporting

[MrCopilot]

The NY times [nytimes.com] article had a completely different slant.

Maybe its me, Same outcome reported, just seemed rupertized.

Legal Precedent

[ipX]

One attorney for BJB said there were no First Amendment problems, invoking a U.S. Supreme Court precedent dealing with an intercepted conversation played by a radio station...

I think this possibly refers to Boehner v. McDermott. See http://www.nationalcenter.org/2004/11/boehner-v-mcdermott-phone-tape-case.html [nationalcenter.org]

Sig Change Time

[Nom du Keyboard]

You mean it's time to change my sig again?